Three Sides

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Introduction"There's three sides to every story -- yours, mine and the cold hard truth."- Don Henley, "Long Way Home"

Recently, I watched as Hasbro were pilloried in GameDev.net's forums as well as in Diana Gruber's article. Diana's article tried to put the case for the defendants in the case. It attempted to make out that all these innocent, fluffy little bunny rabbit companies were minding their own business when -- Shock! Horror! -- along comes Hasbro, the games industry's very own Big Bad Wolf, and they got stomped on. With no warning or provocation.

Well now it's my turn, and I seriously doubt I'll make many friends with this rebuttal...

For those of you who've never heard of me: I'm an ex-graphics artist, an occasional (previously pro) programmer, and sometime game designer. I have about 18 years of creating games behind me, 13 of them as a paid professional. I'm not famous. I've seen at second-hand what 'fame' means -- my cousin is a famous musician in Italy -- and I want no part of it.

I'm based in the UK and am currently paid to write for a living.

For the record, I can honestly claim that I've never worked on a derivative work such as a PacMan rip-off. Ever. I got into this industry because I believed I could do better, not merely repeat what has already been done.

The Plaintiff

First, let's look at the plaintiff's situation:

Hasbro recently acquired the rights to a number of old games, frequently referred to as 'classics'. These rights are known in the trade as Intellectual Property ('IP') rights. They have also acquired licenses to exercise IP rights to other games, such as Tetris®, on specific platforms.

Hasbro are legally required to protect that Intellectual Property to the best of their abilities. No 'ifs', no 'buts': they have to protect anything that has that little 'R' or 'TM' in a circle next to its name. Otherwise, they lose it to the public domain. If they don't protect them, they lose 'em.

Hence the lawsuits.

The Defendants

The defendants are a number of small developers and publishers, ALL of whom are using Hasbro's intellectual properties to profit in some way. This profit may be financial, or it may be an increase in fame or notoriety. Either way, it's wrong to do this. In most cases, what we have is plagiarism, plain and simple. In a couple of others, we have a situation where Hasbro's trademarks are clearly being leveraged -- without any permission or consent on Hasbro's part -- as a way to increase profits, either directly or indirectly.

In most cases, these aren't innocent little public-domain works. These are commercial, bona-fide, shrinkwrapped boxes with CDs in them. Being sold for money.

The defendants have decided to use two specific lines of attack against Hasbro:

(1) "Rip-off? What rip-off?"

The defendants taking this stance don't consider their games as similar enough to the originals. To which I say: Go take a look at them and judge for yourselves. If you honestly believe that these games have not lifted the majority of their core gameplay from the originals, then the argument ends here. But, in my humble opinion, you'd have to be incredibly obtuse to miss it.

Yes, a couple of the cases in question are only marginally about plagiarism, but case is not just about plagiarism. Hasbro have to protect all their intellectual properties, and that includes the names, not just the games.

Let's analyze the actual sales blurb for 3D Astro Blaster. This game, and a number of the others in this case, can be found at http://www.egames.com, but is also still on sale through a number of other online sites. I chose it because this clearly illustrates my point:

"Save the universe from asteroids and space aliens in this action packed arcade game."

Gosh! That sounds familiar...

"Incredible graphics and sounds put you right in the middle of the action as you blast apart asteroids on a collision course with your ship."

...Oooh! "Asteroids" with some extras thrown in. But still, clearly and recognisably "Asteroids".

(Which is, incidentally, STILL a registered trademark. That's what that little 'R' in a circle means, folks. It has never, ever, been released into the public domain.)

Folks, let me make this clear: Moviemakers have to ask permission of the original copyright owners when they want to create a remake, even if the end result bears little or no resemblance to the original.

Now take a good look at the screenshot for "3D Astro Blaster":

-- (again, this is from the eGames site, but most of the others use the same image.)

Clearly, this is an attempt at a remake. And a remake made without permission is just plagiarism. Plain and simple. Imagine if someone other than George Lucas had decided to create "Special Editions" of his original 'Star Wars®' trilogy. Do you think they'd get away with releasing them and charging for them without permission from George?

I didn't think so.

This is all clearly enshrined in IP law. It has been so enshrined for more than a century, long before TV and movies came along, yet neither industry appears to be suffering from it. So why should games be magically exempt?

Ignorance of the law has been a valid defence since... when, exactly?

(2) "But nobody's been taken to court for doing this before...!"

Diana Gruber's article makes some good points about this, but by her logic, it would be Right to kill someone just as long as you don't get caught. Forgery is forgery and plagiarism is plagiarism. It makes no difference whether you use paintbrush and gouache, or Visual Studio and a keyboard: ripping off other people's work for your own, personal, gain is just plain WRONG. Period.

Make no mistake: Intellectual Property *is* Property. Just because you can't see it, it doesn't mean it doesn't exist. Art, in some shape or form, has been around for far longer than recorded history. We were painting pictures on the walls of caves. We were inventing new forms of music and dance long before we had invented words for "music" and "dance".

Part of Homo Sapiens' very success is due to an ability to create and consider the abstract. It's what makes us human. So please, let's forget all those "I can't see it or touch it, therefore it doesn't exist" arguments right now.

The only -- I repeat: ONLY -- reason that older plagiarists got away with it is timing. Put simply: it usually cost too much to prosecute in proportion to the amount of money that would have been saved at the time. The industry simply wasn't that big back then and Atari sure as hell couldn't afford to take every Tom, Dick and Harriet who was ripping them off to court, so they tended to focus on the bigger fish instead.

In fact, if you take a look at the long and bloody history of Atari, you'll see that Atari did take people to court over these very same issues. They even won a few cases. But Atari's finances were high enough to fund such lawsuits for only a very brief period: after 1983, they lost their crown and never regained it.

Even Tetris has been the subject of a number of plagiarism lawsuits over its history.

Today, it's the same story. Except the stakes are much, much higher.

In the UK, many rip-off merchants were successfully prosecuted in the early 8-bit days. These cases helped bring about changes in the copyright laws of the time to make it crystal clear that computer games were indeed covered by the same laws.

The Truth

Since I started writing this article, it appears Hasbro has indeed won its case, albeit not in a court of law. This is both a good, and bad, result. It's good, because it means even the smaller developers will now -- hopefully -- realise that being small doesn't mean the bullets will always miss you.

But it's also bad, because it still leaves the true legalities of the case as a grey area. Would a court have upheld such a position?

Diana [Gruber]'s article made some very valid points. There are precedents in some of the cases, and she was correct to point them out.

The most high-profile example of a copyright case failure is one that still haunts businesses today: a ruling, many years ago, meant that Hoover could no longer prevent other companies from referring to their vacuum cleaners as 'Hoovers' -- even in adverts. In the UK, where the word has long been a common short-hand for vacuum cleaners, you won't find them referred to as anything else. The courts ruled that the word had not been protected anywhere near enough, so it could legally be considered as being in the public domain.

"Bang!" went Hoover's biggest asset: their very identity. An identity, with an associated reputation, that they had spent decades, and billions of dollars, building up.

As you can imagine, no other business wants to suffer the same ignominious fate. Hence every writing magazine is loaded with warnings from a myriad companies threatening dire consequences if copyrights, trademarks and tradenames are not recognised as such in any article. (And this, in turn, is why you'll always see those little 'r' and 'tm' symbols after any trademark.)

Kleenex® are particularly insistent that all writers -- even novelists -- use that little symbol when mentioning their products. Make no mistake: no novelist would get away with treating 'Kleenex®' as a generic term for paper tissues.

These examples are for industries that produce physical, tangible products and are not all that reliant on abstract intellectual properties.

In an industry that relies 100% on abstract intellectual property, such as the games industry, losing a name today would mean losing millions of dollars worth of investment in design, development, advertising and distribution tomorrow. If Hasbro had lost their case, ANYONE could have called a game "PacMan®" and used the very cachet and success of the original game to increase sales of even a mediocre clone.

Conclusion

I disagree almost 100% with Diana's article. We should have been scared if Hasbro lost, not if they won. If Hasbro lost, then it would have meant the death of copyright laws and intellectual property rights as we know them.

Lose intellectual property laws, and nobody's games would be safe from plagiarism any more. Fly-by-night pay-nothing publishers would rise up out of the cesspits of the world and tell gullible coders to steal, copy and rip whatever works they wanted to cash in on. And nobody would be able to touch them for it.

Creating a new game genre from scratch is a long process, usually involving a number of released products. The first is the proof-of-concept. "Dune 2®" was the first RTS Westwood® created, not "Command & Conquer®". Every subsequent release in the series has been an evolution, a refinement, of that original concept. Each attempt was an attempt at improving the overall gaming experience.

Others, such as Ensemble®, looked at these works and, instead of simply plagiarising it, they created their own 'take' on the basic concept called "Age of Empires®". This game is clearly based on the same concept used in Westwood's product, but the execution -- the actual gameplay -- is very, very different. The important issue here is that both games were successful in their own right.

But what's the point in spending all this R&D time and money on a game if people are only going to plagiarise and undercut you? Some may not consider this a bad thing, but few people get into this industry for the fame. Creating games is a team effort, and no single individual can lay claim to being solely responsible for creating a hit.

Fame is vastly overrated and usually ends up hindering rather than helping your career. And fame alone won't buy you the development software and hardware you need to make great games.

Usually, professionals will tell you they do it because it's a bit more fun than designing and building databases or flipping burgers at a fast food chain. But fundamentally, they're doing it because people need to work in order to make money. And we need that money to pay our bills and taxes.

* * *

The computer games industry is growing up and that means it has to be more mature. The pioneering days are over for the time being. Other frontiers await us, but we need to take stock and consolidate what we have until we're ready to strike out again.

Hasbro aren't evil. They just don't want people stealing their property. Is this so wrong?

Sean Timarco Baggaley

DISCLAIMER:This article reflects the opinions of its author, and does not necessarily represent the position or opinions of GameDev.net, LLC or its ownership, staff, or affiliates.